Abusive executive orders are what most critics have in mind when they accuse President Barack Obama of threatening the constitutional separation of powers and of building an “imperial presidency.”
But let’s not forget how this Administration quietly usurps congressional powers by using the hyper-politicized Justice Department to nullify laws it doesn’t like, and even to subvert the congressional power of the purse.
The Wall Street Journal reported that District Judge Andrew Hanen of Texas found the Administration’s lawyers guilty of “intentional, serious, and material” misconduct last Thursday, because the Justice Department simply ignored an injunction against Obama’s illegal immigration orders, and then lied to the judge about what they were doing:
When 26 states sued to block the order in December 2014, Justice repeatedly assured Judge Hanen that the Department of Homeland Security would not start processing applications until February 2015 at the earliest. Two weeks after the injunction came down, in March, Justice was forced to admit that DHS had already granted or renewed more than 100,000 permits.
Justice has also conceded in legal filings that all its lawyers knew all along that the DHS program was underway, despite what they said in briefs and hearings. One DOJ lawyer told Judge Hanen that “I really would not expect anything between now and the date of the hearing.” As the judge notes, “How the government can categorize the granting of over 100,000 applications as not being ‘anything’ is beyond comprehension.”
DoJ tried to wave this off with some gobbledygook about its hard-working lawyers “losing focus on the facts,” or suffering some kind of mental illness that prevented them from remembering that the number of permits handed out to illegal aliens was over 100,000, rather than zero.
Hanen would have none of this, accusing the lawyers of acting in “bad faith” and declaring, “it is hard to imagine a more serious, more calculated plan of unethical conduct.” He actually ordered D.C.-based Justice Department lawyers to attend remedial classes on legal ethics before court appearances in any of the 26 states that are part of the immigration lawsuit.
The Wall Street Journal explains why this case should disturb Americans of every political stripe:
Prosecutors often abuse their powers in run-of-the-mill cases. But this is a constitutional challenge with major consequences for the separation of powers, and the deceit must have required the participation and coordination of dozens of political appointees and career lawyers. That suggests a serious institutional failure, not mere rogue actors.
Main Justice may have figured that the state challenge would be tossed for lack of standing, and thus its dissembling wouldn’t matter. This would mean that President Obama’s refusal to recognize the legal limits of his executive power has spread a culture of lawlessness among his lawyers too.
It wasn’t just an “institutional failure” – it was a deliberate strategy.
The federal bureaucracy has grown beyond the ability of Congress to monitor or control it. When Barack Obama realized that most of the barriers to executive overreach were essentially informal, polite arrangements between the White House and Congress, with the legislature having surrendered most of its legal power to restrain the executive, he saw the bureaucracy as an ultimate weapon for marginalizing Congress and stealing the rest of its powers.
Sometimes he brags about doing end-runs around the supposedly fossilized and obstructionist legislature, boasting of his superior moral vision and the urgent need to sweep aside silly rules so he can Do Something For the People. Even when he’s not bragging about it, he and his minions are doing it, through hundreds of bureaucratic subversions every single day.
Obama and his followers are great believers in using executive and bureaucratic power to change the facts on the ground fast, making subsequent legal arguments largely academic. Judge Hanen may castigate the Justice Department and embarrass its lawyers, but there isn’t much serious discussion of reversing what they’ve actually done.
Congress’ “power of the purse” became a sad joke after budget trickery guaranteed that the federal government would grow, forever and ever, with expenditures far beyond the funding provided by taxpayers. Even so, the Administration looks for every opportunity to subvert what remains of fiscal control. A remarkable example comes from the Politically Short blog, which explains how the Justice Department has been shaking down banks and funneling huge sums of money to left-wing activist groups.
In brief, the DoJ has been hunting down bankers in the wake of the 2008 financial crisis and slapping them with gigantic settlement agreements – Politically Short describes one with Bank of America valued at $16.5 billion. Some of the settlement money is paid as “direct consumer relief.” Despite what the name would imply, that money doesn’t necessarily go directly to consumers:
In order to fulfill it’s $7 billion consumer relief obligation, Bank of America is required to provide, “a minimum of $2.15 billion in first lien principal forgiveness, $50 million in donations to community development financial institutions, $30 million in state-based Interest on Lawyers’ Trust Account organizations, and $20 million in donations to HUD-approved housing counseling agencies.”
In addition, Bank of America is also required to take a $100 million loss in support of affordable rental housing. Which means, the DOJ has required Bank of America to make a $100 million donation to selected third party organizations, $20 million of which is also required to go to HUD approved “housing counseling agencies.”
This example with Bank of America alone follows virtually the same exact requirement stipulated in the settlement agreement that the DOJ reached with Citigroup Inc., a pattern which the DOJ has followed against major financial institutions.
The result is a liberal slush fund worth over half a billion dollars, steered by the Justice Department to groups like the racialist National Council of La Raza. The Obama Administration gets to enforce its preferred housing policies through DOJ, without submitting legislation to Congress for approval. According to Politically Short, there is no real requirement that the settlement money is ultimately disbursed to “aggrieved homeowners.”
Millions more are piled up in a “Three Percent Fund,” which is basically the Justice Department’s cut of those gigantic settlement agreements… and since the money never makes it to the Treasury’s General Fund, it bypasses congressional appropriations authority. It’s a pot full of money the Administration can spend on all sorts of activities the American people might disapprove of, if their representatives were involved, as the Founders intended.
There are slush funds all over Washington these days. ObamaCare has more slush leaking out of it than a broken Slurpee machine. Politically Short compares Obama DoJ to a crime syndicate, but frankly the Mob isn’t nearly as good at making millions of dollars vanish without a trace.
The Wall Street Journal dubs DoJ “The Miscarriage of Justice Department,” which ought to teach Americans obsessed with notions of cosmic “justice” an important lesson: when the government enforces ideology, injustice is always a byproduct. As soon as the government starts doing anything more than protecting our borders and enforcing clear criminal law, people who did nothing wrong will inevitably be punished by government power.
It’s particularly galling when the agency charged with enforcing criminal law becomes an instrument of ideology, but it was also inevitable. Is there an agency left in the federal government that doesn’t spend money it was never given by Congress, or wield power it was never lawfully granted?
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